Wednesday, 25 March 2015

The protection of temporary agency workers according to the CJEU: The AKT judgment

Alejandra
Victoria García Sánchez *

Research
and Documentation Department of the Court of Justice of the EU (The opinions expressed
in this blog post are solely those of the author)

Last week the Grand
Chamber of the Court of Justice of the European Union (CJEU) issued its first
ruling on Directive 2008/104/EC on temporary agency work, the judgment in AKT, Case C-533/13. The following blog post sets
out the legal context of the Directive, the main points of the judgment and an
analysis of the judgment, comparing it to case law on related legislation and commenting
on the main issues that it raises.

Legal context
of the on temporary agency work Directive

Temporary
agency work is regulated by Directive 2008/104, which was adopted under
the legal basis provided by Article 153, paragraph 2, of the TFEU. Two other
forms of so-called ‘atypical work’, part-time work and fixed-term work, are
regulated by Framework Agreements negotiated by the social partners (these
Agreements are annexed to Directives 97/81/EC and 1999/70/EC respectively).The recitals of the Framework
Agreement on fixed-term work stated an intention to adopt a similar Agreement
on temporary agency work; however, the failure of the social partners to reach
such an Agreement led the EU legislators to adopt a Directive instead. The
Commission reported on the transposition of the Directive by Member
States in 2014.

Field of
application of the Directive

The CJEU had previously
clarified in its judgment inDella Roccathat
fixed-term workers placed by a temporary work agency at the disposition of a
user enterprise are not covered by the Framework Agreement on fixed-term work
but by the Directive on temporary agency work (paragraph 36).

In order to
determine whether a worker is protected by the Framework Agreement or by the
Directive, the type of employer prevails over the type of contract that binds that
employer to the employee.

The facts and
the judgment of the CJEU in AKT

In the AKT
judgment, the CJEU clarified the scope of the obligations stated in Article 4(1) of the temporary agency work Directive,
entitled “Review of restrictions or prohibitions”. This provision states that “prohibitions or restrictions on the use of
temporary agency work shall be justified only on grounds of general interest
relating in particular to the protection of temporary agency workers, the
requirements of health and safety at work or the need to ensure that the labour
market functions properly and abuses are prevented”. Article 4(2) states
that Member States shall review restrictions that are not based on general
interest grounds.

The undertaking
SAF has been employing temporary agency workers for several years. The AKT, a
trade union, contended before Finnish courts that SAF was employing temporary
agency workers to perform the same tasks as its own workers and required SAF
and Öljytuote ry, an employers’ association, to pay a penalty provided by
Finnish law punishing improper use of temporary agency workers. The defendants
contended that the Finnish provision establishing a penalty for improper use of
temporary agency work is contrary to Article 4(1) of Directive 2008/104, since that
limitation is not justified on the grounds of general interest. The national
court doubted whether Article 4(1) of the Directive obliges national
authorities, including the courts, to not enforce or not apply national
provisions containing prohibitions or restrictions that are not justified on
grounds of general interest.

The CJEU
analysed Article 4(1) “in its context”. It highlighted that paragraphs 2, 3 and
5 of the same Article require the Member States to review and verify whether
the limitations laid down by their laws are compatible with Article 4(1), that
they notify the Commission of the review and that the Member States remain free
to either remove or adapt the restrictions and limitations laid down by their
laws (paras 26-30). The CJEU stated that the tasks indicated in Article 4 are
to be performed by the competent authorities of the Member States, and not by
national courts. Furthermore, the CJEU concluded that Article 4(1) does not
require the adoption of specific legislation (para.31).

The case law on
the part-time work Framework Agreement

It is interesting
to compare the treatment of Article 4(1) of the temporary agency work Directive
with the case law on the similar
provision of the part-time work Framework Agreement.

The latter Agreement contains a provision that is similar
to Articles 4(1) and 4(2) of Directive 2008/104: Clause 5(1)(a) of the Framework Agreement imposes an obligation on
Member States to “identify and review obstacles of a legal or administrative
nature which may limit the opportunities for part-time work and, where appropriate,
eliminate them”.

Clause
4 of the part-time work Framework Agreement, whichstates the principle of
non-discrimination of part-time workers in respect of employment conditions,has been considered by the CJEU as articulating
a principle of European Union social law which cannot be interpreted
restrictively (Case C-395/08, Bruno e.a., para. 32).

In Case C-395/08, Bruno e.a, paras. 80-81, the
CJEU reached the conclusion that, where national legislation is found by a
national court to be incompatible with Clause
4, i.e., it discriminates against part-time workers, discouraging the
workers from pursuing their occupational activity on such a basis, Clauses 1 and 5(1) of the agreement
would have to be interpreted as also precluding such legislation.

An example of a
measure that has been found to infringe Clause
5 was identified in case C-55/07, Michaeler a.o., where Italian
national law required employers to notify part-time work contracts 30 days
after their conclusion, with the possibility to impose fines in case of lack of
notification. The measure was found by the CJEU to dissuade employers from
using part-time work contracts and thus, to be precluded by Clause 5(1)(a)
(paras. 28-20).

This case law
provides guidance on the issue of when a measure should be eliminated according
to Clause 5(1)(a) and can be applied by analogy to Article 4(1) of the
Directive in order to clarify the causes why a Member State is entitled to
restrict or prohibit the use of temporary agency work and when is it required
to withdraw a restriction or prohibition.However, this was not at issue in the AKT judgment. The issue is not when
but who should withdraw an
unjustified restriction upon temporary agency work. According to the above
mentioned case law, under Clause 5(1)(a), both the Member States and the
national courts can perform the task of eliminating unjustified restrictions. This
mechanism ensures that, if restrictions persist, a national court can solve the
problem by eliminating the obstacles, contributing to the achievement of the
objectives of the Agreement.

Comments

In the AKT judgment, the CJEU entrusted solely
the governments of the Member States with the task of complying with the
objective of article 4(1). Thus, the case law regarding Clause 5(1)(a) cannot
be used by analogy, as it could have been expected, in order to interpret who
should review or eliminate a measure not compatible with article 4 of the
Directive, since, as it has been interpreted by the CJEU, only the Member
States’ competent authorities have the power to review or eliminate national
provisions in order to decide when and how to comply with the objectives of the
Directive.

The CJEU in
this judgment interpreted Article 4(1) in “its context”; however, the “context”
was limited to the other paragraphs of Article 4. It is true that looking at
those provisions, only governments and social partners (if such restrictions or prohibitions are laid down by collective
agreements, according to Article 4(3)) can proceed according to Article
4(1). However, the CJEU did not mention the objective of the Directive settled
in Article 2. The Directive aims at recognising temporary work agencies as
employers, while taking into account the need to establish a suitable framework
for the use of temporary agency work with a view to contributing effectively to
the creation of jobs and to the development of flexible forms of working. Thus,
from the point of view of social policy, the rationale behind the adoption of
the Directive seems clear: to stabilise the situation of temporary work
agencies and to settle their legal status as employers, limiting the use of
their temporary workers only on grounds of basic work standards such as health,
safety or prevention of abuses, which are basic principles of social policy
applied in many other fields of labour law. Once this policy step has been
taken, from the point of view of legal consistency, the objective of the
Directive being clear, the combination of Articles 2 and 4(1) of the Directive
should lead to the empowerment of national courts to not apply national laws
that restrict temporary agency work further than necessary, which are contrary
to EU law (as is the case with Clause 5(1) of the part-term work Agreement).

The exclusion
of the competences of the national courts to not apply measures that run counter
to Article 4(1) might thus be paradoxical, since, the unjustified restrictions
that have not been modified or derogated from by the “competent authorities”
will have to be applied by national judges, even if they consider them to be
contrary to the Directive.

However, this
judgment has been welcomed by trade unions, since
it has been considered that it “guarantees the social partners’ autonomy in
regulating the use of temporary agency work through collective agreements”.
Their joy should be limited, as we should not forget that Article 4(3) states
that the review referred to in paragraph
2 may be carried out by the social partners who have negotiated the relevant
agreement. Furthermore, the Directive is still clearly in favor of
recognising that temporary agency work is a form of employment that should be
protected, and only limited on the basis of fundamental work standards. The
fact that national courts are not entitled to set aside unjustified
restrictions (according to the CJEU) does not mean that the Directive’s
objective has changed, but it does mean that the achievement of that objective is
delayed and more difficult to reach, since the political will of governments
and social partners might not be focused on these aims.

1 comment:

I had no idea that there were so many different laws that were put into place for temps that worked in companies. That really sounds like a great option though. It definitely sounds like it would be very difficult being a temporary and not being able to have the same benefits as everyone else. Thank you for taking the time to share. http://www.carlsonstaffing.com/about-our-services/